Players: Decision
by Judge Schroeder, joined by Judge Wallace. Dissent in part by Judge Kozinski.

Twenty-four years old when sentenced, Thomas will be 73 when released.

Facts: Thomas was a bank teller. Id. at *3. Using insider information, he worked with a crew that robbed
a string of banks. Id. at *4.

Convicted
after trial, Thomas was hit with stacked Section 924(c) counts and a mand-min sentence
of 32 years. Id. at *6-*7. The
district court then added 210 months for the conspiracy and robbery counts, for
a total sentence of 49.5 years. Id.
at *7.

Issue(s): “On appeal . . . Thomas
contends the resulting sentence was substantively unreasonable. He argues that a
49.5 year sentence is disproportionate to the crimes for which he was convicted.”
Id. at *14. “The . . . issue is the reasonableness of Thomas’s sentence under
18 U.S.C. § 3742, the statute authorizing appellate review of sentences. Thomas
argues that his sentence was unreasonably high. In imposing the 49.5 year
sentence, the experienced district judge was well aware of the impact of the
mandatory minimum sentences. Indeed, the district judge expressly said that he
believed that the total 32 year mandatory minimum for use of a firearm in this
case was excessive, but recognized that he had no discretion with respect to
its imposition. Thomas agrees. In imposing the sentence on the robbery and
conspiracy counts themselves, the district judge concluded that the
within-range 17.5 year sentence, under all the circumstances, was not unreasonable.”
Id. at *9-*10.

Held: “We
agree, but Thomas does not.” Id. at
*10. “The
troublesome issue in this case arises because the mandatory minimums must be
combined with the sentence imposed on the underlying crimes, to create a very
long sentence. Yet this does not make the sentence unreasonable. . .” Id.
at *17.

Of Note: In dissent, Judge Kozinski compellingly details the
district court’s fundamental misunderstanding of its discretion to vary
downwards. Note that Thomas was only 24 years old when he was sentenced, with
no real criminal history, and wasn’t even present for two of the robberies. Id. at *19. With the sentence imposed,
Thomas will be 73 when he
gets out of prison. Id. In fact,
Thomas got a dozen years more than a
terrorist who plotted to blow up LAX. Id.
at *23.

Do you feel bad about that
half-century of incarceration? So did the district judge.

The D.J. complained the sentence was “too much. I wouldn’t impose
that sentence if I had the discretion. But I don’t.” Id. (emphasis in original?) As Judge Kozinski observes, “The
district judge mistakenly believed he was required to calculate the Guidelines
portion of the sentence as if it were a stand-alone sentence, rather than as
one component of a combined sentence. There is, at the very least, a serious
risk that the district judge meant what he said: He imposed a 49.5 year
sentence because he believed he had no discretion. This is a major procedural
error that requires reversal.” Id. at
*21-*22.

What happened in this case? It
appears the D.J. didn’t understand that he could vary downwards on the
guideline component of the sentence – all the way down as far as the 32 year mand-min,
if he wanted. As Judge Kozinski observes, the erroneous resulting sentence is far
“greater than necessary” – a tragic result from a fundamental sentencing mistake,
that stands uncorrected by the Ninth.

How to Use:
That infernal tangle of mand-mins and guidelines will be coming more frequently
to a court near you, soon. Before that happens Thomas is worth a close read to understand how those two components
interrelate -- Judges Schroeder and Kozinski both agree on the variance that could have happened in this case.

For Further
Reading: Inauguration on Friday. How will
President Trump affect the Ninth? For an interesting early analysis, see How Big a Deal are Four 9th
Circuit Vacancies that Await Trump?, available here.

Image of Mr. Thomas from http://www.yourwestvalley.com/suncitygrand/article_be608910-3a18-11e4-8e9c-a70dc4cf1458.html